H-1B Visas

H-1B Visas

The H1B visa is a nonimmigrant visa that is highly sought after by foreign professionals and U.S. employers. There is an annual quota/cap imposed on the visa, which means applicants for the H1B are entered into a lottery system unless they are exempt from the cap. The competition for an H1B visa increases year-after-year. It’s important to get started on the process early so your H1B application is ready to file by April 2, 2018, when USCIS begins accepting applications. In past years, USCIS has had to close the filing window within a few days, so the sooner you file, the better.

H1B visa are granted to foreign professionals who work in a specialty occupation, which requires the theoretical and practical application of a body of specialized knowledge and a bachelor's degree or its equivalent in the specific specialty. There are many, many positions that qualify for H1B visas. Consult with an immigration attorney to be sure the position you are seeking is one that falls under the H1B “special occupation” umbrella. In order to qualify for the H1B visa, your specialty occupation MUST be related to your degree.

There are some exemptions to the H1B quota/cap. For example, if you are a foreign worker who has not reached the six-year limit, that is, if you have been previously counted against the H1B quota, you could be cap-exempt. Or, if you work for a nonprofit organization or a higher learning institution, you could also be cap-exempt.

In order to apply for an H1B, you must have a U.S. employer willing to sponsor you. Without a U.S. employer, you cannot apply for the H1B visa.

Once you have secured a U.S. employer willing to sponsor you, the prevailing wage for the position you are seeking must be determined. The prevailing wage is the average wage paid to similarly employed workers in the specialty occupation. Your employer must be willing to pay the prevailing wage (or a greater amount) to you in order to apply for the H1B visa.

After the prevailing wage has been determined and met by the employer for the specialty occupation you are seeking, a Labor Condition Application (LCA) is submitted to the U.S. Department of Labor. The LCA must contain the prevailing wage information. Certification of the LCA can take anywhere from a day or week to process, so it is best to submit the LCA as soon as possible. The petition filed to USCIS to begin the H1B process (Form I-129) cannot be filed without a certified LCA application. An experienced immigration attorney should be consulted for more information about prevailing wage determinations and the LCA filing process.

When preparing and filing the I-129 Petition, it is important to keep the following in mind:

• Your U.S. employer MUST submit evidence to prove it can pay you the prevailing wage for the specialty occupation.
• Processing fees MUST be paid by the employer. USCIS will not accept filing fee checks from the person seeking the H1B visa.
• Double check (and then check again!) that all forms have been signed and dated correctly. An application with even one missing signature will not be processed. The application will be returned to you and you will most likely not be able to refile it before the filing window closes.
• Double check (and then check again!) that you are sending your application to the correct address. If you do not send your application to the correct address, you will most likely not be able to refile your application before the filing window closes
• Paying for premium processing DOES NOT mean your application will be automatically selected in the lottery.

The H1B is a temporary nonimmigrant visa. They are issued for three years and can be extended for another period of three years. There are two instances in which an H1B visa can be extended past the total six-year period. The first instance allows for an extension in one-year increments if the beneficiary is seeking employment based permanent residency and 365 days have passed since the filing of a Labor Certification Application or an I-140 petition. The second instance allows for a three-year extension and requires that the beneficiary have an approved I-140 Petition but is unable to file for adjustment of status due to per country visa limits. In either instance, there is no limit to the number of extensions an applicant may receive.

Does the H1B process seem daunting or overwhelming? Caruso Law Group can help! Attorney Caruso can guide you and your U.S. employer through the process, ensuring your application is properly prepared and submitted as soon as the filing window opens. Schedule a free consultation with Attorney Caruso today to make sure you qualify for the H1B visa and to go over the costs (both filing fees and legal fees) involved in the process. Remember, timing is extremely important in the H1B application process, so do not delay or procrastinate if you think this visa option can work for you!